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Hurley v Law Council of the Republic of Vanuatu [1999] VUCA 3; Civil Appeal Case 04 of 1999 (21 April 1999)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appellate Jurisdiction

CIVIL CASE No. 04 OF 1999

IER">IN THE MATTER OF
The Legal Practitioners Act 1980 [CAP. 119]
as amended and the Regulations made thereunder

AND

IN THE MATTER OF
An application by Mark James Hurley of Port Vila,
Efate in the Republic of Vanuatu for an Unconditional Practising Certificate

BETWEEN:

MARK JAMES HURLEY
Appellant

AND:

LAW COUNCIL OF THE
REPUBLIC OF VANUATU
Respondent

Coram: Justice Bruce Robertson,
Justice John von Doussa,
Justice Daniel Fatiaki

Counsel: Mr. John Malcolm for the Appellant,
Mr. Jack Kilu for the Respondent.

ALIGN="CENTER">JUDG>JUDGMENT

On 7^th March 1997 the Appellant Mark James Hurley was anted by the Law Council acting under the Legal Practitioners Act [CAP. 119] and the a appropriate regulations a right to practice for a period of two years. There were two conditions attached.

Towards the end of last year having been offered the opportunity of permanent employment as a principal in a law firm in the Republic Mr. Hurley made an application for unconditional registration pursuant to the provisions of Section 4 of the Legal Practitioners (Qualification) Regulation No. 23 of 1996. That was initially refused. There has been a great flurry of Court activities since that time but not a great deal of progress towards resolving the outstanding issue.

Eventually there was an interim injunction obtained enabling Mr. Hurley to continue practice mean time. The Council has now indicated that it is prepared to provide him with conditional registration in terms identical to the injunction which was previously granted in the Supreme Court.

The Council indicated that it intend to review its position on the major application. It began to do so but when an appeal was filed to this Court about the matters in issue, the Council adopted the view that the matter was sub judice and therefore it couldn’t look at the application further. We can find no basis for that conclusion. The appeal is no impediment to it getting on and doing what it has a clear duty and obligation to do in a timely way under the Act and the Regulations.

Mr. Malcolm is concerned that we should give a variety of directions to the Law Council as to what matters might be relevant and how it should go about the review. We are unwilling to do so. Mr. Kilu suggested that nothing could happen until the appeal is dismissed. We don’t agree with that either. There is no reason why this appeal should be dismissed. It should properly be adjourned until such time as the Law Council has made a final decision on the review. That has been pending for many months. It is time it was completed.

Whether the Council is of the view that it has a need to investigate matters relating to issues outside the clear wording of Regulation 4 is a matter for them at this stage. If a decision is reached (with which Mr. Hurley is unhappy) he will have the opportunity to challenge whether the task has been correctly carried out.

We are of the view that there is no matter which should properly be considered by the Court of Appeal at this point. But to avoid the possibility of another set of proceedings and the duplication of much material which is already on the file, we are satisfied that the proper course is to adjourn the proceeding to be brought on if that is necessary.

The Council needs to have particular regard to the provisions which are contained in the Regulations and the matters which are enumerated there as being relevant to any application for unconditional admission.

On the basis that there is now no bar to the review and as the injunction is now spent the matter stands adjourned. It can be listed at the next session if necessary.

We note that the four months period will not get to the beginning of the next session, if the Law Council makes a decision in the next week or two (as we would hope and anticipate it will). There could be a period in which there will need to be a further extension of the temporary arrangements pending the return of the Court of Appeal. If it became necessary to issue proceedings simply to deal with that, the party which is being unreasonable will remember that the Court has an ability to deal with costs issues, particularly costs which are unnecessarily incurred in any proceeding.

Bruce Robertson J.
Judge

J. W. von Doussa J.
Judge

Daniel Fatiaki J.
Judge

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